Tracker case
A and B want to enter at night in a grocery store to rob the cash register there. B plans to act and shall fix the place and time. Each of them should carry a gun should be shot if necessary with the persecutors. Accordingly, press A few days later the window of a room, which he sees as the office of a business. Meanwhile, fit B in front of the building. However, it is the supposed office to the bedroom of the couple E, the owner of the business are. E husband jumps out of bed and runs screaming and gesturing to the window. A and B then rush back to the road. In the run B is back a little. A look back as he sees that he follows at a distance of several meters a person. A holding that person in the dark for a pursuer and fears gripped by this to be. In fact, it is but by the order as the supposed threat of arrest and the discovery of his crime to escape, A shooting at the person and hurrying after him with an anticipated effect of his deadly shot. The block in B on the right upper arm.
A and B want to enter at night in a grocery store to rob the cash register there. B plans to act and shall fix the place and time. Each of them should carry a gun should be shot if necessary with the persecutors. Accordingly, press A few days later the window of a room, which he sees as the office of a business. Meanwhile, fit B in front of the building. However, it is the supposed office to the bedroom of the couple E, the owner of the business are. E husband jumps out of bed and runs screaming and gesturing to the window. A and B then rush back to the road. In the run B is back a little. A look back as he sees that he follows at a distance of several meters a person. A holding that person in the dark for a pursuer and fears gripped by this to be. In fact, it is but by the order as the supposed threat of arrest and the discovery of his crime to escape, A shooting at the person and hurrying after him with an anticipated effect of his deadly shot. The block in B on the right upper arm.
criminality? Editors Note: murder, robbery and theft are not predatory to consider. Check with regard to the basic offense of theft only § 242 without sentencing rule example.
| comment | solution |
| | pursuers case (after BGHSt 11, 268 et seq) first action portion : The break-in attempt criminality of A and B A. § § 242 para 1, para 2,, 22, 23, 25 Section 2 theft is not complete, as no removal. Test according to § 242 para 2 offense. I. offense first Tatentschluss a) A and B wanted other movable property, namely take away the money from the till, and dedicate itself unlawful. For A no problem with regard to guilt, he should carry out the SnOil offense. B is only culprit when it the actions of A (set this would happen actually) of § 25 II would be allocated and therefore he would be complicit. b) This is the case when A and B would jointly act . Complicity is based on the principle of division of labor action and functional roles . Any interested party as "equal partners" The co-sponsors of the joint decision and Community event realization, so that the individual Tatbeiträge complete into a single whole and the overall success of each participant is allocated in full. Mitt ä pionship therefore means conscious, voluntary cooperation of several to commit a crime. It presupposes that the act is based on a joint decision and that any complicity makes an objective contribution to the act. It is sufficient to complement the contributions of the complicity iSe functional cooperation. According to the teaching of the objective over the infringement, it is important whether the proposed contribution to the act for the establishment of functional control over the infringement would suffice. It depends on whether B can control the action at will. This would be the case, since B may deter the A by a warning call from the Tatvollendung. It is doubtful whether the mere possibility of control is a sufficient influence over the infringement of, or whether B needs to shaping the act also by actually use this potential effectively. For this he would have done than just do not stand in the execution stage. This minority opinion within the Lerhe over the infringement of the items would be so to the negation of some action on offense; mittäterschaftliche intent. After sufficient uhm consistent holdings on the basis of common will may also conducting a mere preparatory act without support and even a purely intellectual involvement. However, it has to examine very carefully whether the "equity minus" is balanced with the real Tatausführung by the "Plus" in shaping tort planning and whether in the percentage of the common over the infringement of at least the lower threshold of the so-called "functional control over the infringement" not yet achieved . aa) the extent of complicity The act was designed by B. However, the "dope standing" no causal effect on success. Therefore, special care be respected, whether this "negative equity" of B in the Tatausführung should be compensated by the "plus" in planning. bb) private interest in the fact A and B would share the spoils, so they both have an equally strong interest in the success. cc) After h. M. B would have the sufficient potential over the infringement. dd) They therefore wanted to commit a deliberate and desired cooperation of a theft. They are therefore complicit in accordance. § 25 para 2 ee) The Tatentschluss is therefore prior to the overall assessment of the judiciary. c) The dispute is thus represented the minority opinion within the above obj. Decide over the infringement: aa) This view is, that even the only potential control over the infringement would refer themselves to a potential limited only to the termination of the deed. B could promote further the act does not really, but almost, by omission of an alarm (that could only inhibit not allow drainage). His actual participation would be limited to the planning phase. The decision of the question thus depends on whether one can suffice to a constructive involvement in the preparation stage. This would be possible to extend the preparation stage, but also a very early start of the experiment would mean, because B would occur after the individual with the solution already Tatplanung in the beginning of the experiment. This preparatory action is intended but according to § 30 of the Criminal Code are punishable only in special cases. Items over the infringement was not intended for B, its contribution was the absence of actual control is not important enough. However, this view is due to their schematic narrowing of concern. You can, by concentrating on the execution stage of just the complicity usually necessary planning phase (which requires several contributions are matched logistic) are not sufficient. The view of the established case law provides for more individual justice and is therefore preferable. Interim Results: The Tatentschluss was therefore directed to mittäterschaftliche commission. second The immediate preparation A had already the window of the alleged office space pressed. It should immediately follow the detention break. For A is therefore problematic from a direct preparation. Regarding the attachment of the other accomplice is represented by HM the so-called total solution. Then put both of complicity, if even one attaches. Then B would have here shown at A. After the single solution, it depends on whether the other is also directly in front of his contribution to the act. Here B has already been dope stood and prepared the plan, so his Tqatbeitrag already been provided, so that he was prepared immediately after the two screens. The dispute can not be decided. A and B have therefore gem. § 22 directly to their perception of the act set to achieve the offense. illegality II (+) III. debt (+) V. R ü Resignation gem. § 24 para 2 (-) Neither perpetrator resigned. A voluntary preventing the consummation took place, heteronomous motives predominate, as the two offenders every person for themselves by the noise of the shop owner discovered emerging pattern was induced to flee. VI. Result: (+) C. § § 303, 25 para 2 A By pressing down the window, he has damaged a moveable thing. Since this corresponded to the joint plan, the property damage and the B is attributed as an accomplice. D. § § 123, 25 para 2 Whether A has at least brought some of his body into space, is in doubt after the fact. § 123 Therefore, regardless of whether it is an autograph offense is to reject both. second story section: Escape A. A penalty of I. § § 212 para 1, 22, 23, para 1, 12 para 1 completion is not available. The attempt of a crime is punishable under § § 23 para 1, 12 para 1. first Event a) Tatentschluss A wanted to shoot at his supposed pursuer and has calculated it with a lethal effect of the shot. He has thus tacitly taken into account that the shot could kill his alleged persecutors. b) With the submission of the shot A is joined directly to the event realization. On the error of the A to the identity of the alleged persecutor is not relevant, as even the attempt is punishable on disabled object, see § 23 para 3 of the Criminal Code and an identity confusion on target, charges equivalent object of the crime even as it completes any significant deviation of the causal process and success would be (sg error in persona, § 16 I StGB the perfect crime). second Illegality and guilt (+) third Result: (+) II § § 223, 224 para 1 No 2 and 5 With the shot A also committed an intentional assault. The assault took place by means of a weapon and endangering the life of a treatment. B. Criminalization of B I. § § 212 para 1, 22, 23, 25 Section 2 completion is not available. The attempt is punishable. For B, only one is unfit before trial, as the suicide is punishable. The attempt is punishable disabled, for lack of the requirements of § 23 para 3. first Event a) Tatentschluss complicity presupposes a conscious and deliberate interaction of Tatbeteiligten due to a joint decision. It is not necessary that each accomplice realized even a criterion. However, it must be involved throughout the Tatausführung of complicity in the over the infringement. b) B has angestzt immediately if B unmittlebare the preparation of the A to attempted manslaughter ü about the mid ä pionship after § 25 para 2 should be attributed . The Supreme Court reached in the present case, accepting complicity. He has relied on the fact that a persecutor of the shooting at any joint agreement to Tatausf ü currency equivalent, ie not an accomplice of the one (B) involuntary excess of the other (A) was present. B would have control in the proximity of his Tatgenossen his action at any time and ask him, can not affect the agreement to fire on tracker. That he did not do so until delivery of the shot, based its share of responsibility for the statements made on him shot. The error in persona of A must also f ü r the mid ä ter B be irrelevant. But that would be rejected if does not serve as, B is an attempted breach of its own would be punished. But this is not the case because the trial a third party, an imaginer pursuers was that the injury was B agreed and wanted to take the A as well. Whether B by an "error in persona" or is injured "aberraio ictus" is an unfortunate accident. The cynicism that results can by an equally schematic application of the cancellation rules ("Selbsbehandlung" of B is sufficient) or to be considered at the level of sentencing. The latter is not possible in the murder. c) The fact of (+) d) This is to clarify the terms of the act of the outcome is A, as A has acted in complicity. second Illegality and guilt (+) third A resignation according to § 24 I S. 1 Alt 1 resigned because he, despite further Tatmöglichkeit (More cartridges) tasks. (Anders if he had discovered that it is B acted differently if one takes the doctrine of non-factual achievement) The question is whether not only § 24 II is applicable, it would be a withdrawal for lack of commitment to active prevention is not possible. The hM § 24 I also used the full tort acting in complicity. B has resigned, when he prevented the crime according to § 24 II or seriously attempted. He has done to live near the facts as interpreted by the wound care. He therefore resigned. 4th Results: (-) II § § 223 Section 1, 224 1 No. 2 Alt. 1, para 2, 22, 23, Section 1, 25 para 2 is not only for B completed assault as an accomplice, but only a unfit trial before the injury because the injury is self-punishment. This is like the attempted murder prosecution, for lack of the requirements of § 23 para 3. The plot of A is assigned to B to § 25 paragraph 2. competitions: tried to theft are the crimes of the second act to § 53 section in Tatmehrheit A for the attempted homicide is related to the bodily injury in coincidence, otherwise the Unwertgehalt the age of injury is not reflected (so now the Supreme Court). With regard to the attempted assault B occurs behind the attempted murder back in law unit. |
